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Recognition of Foreign Judgments and Arbitral Awards in the Czech Republic

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Otakar Hájek

1. Introduction

The area of law dealing with the rules of recognition and enforcement of foreign judgments and arbitral awards in the Czech Republic is an area that underwent many recent and quite dramatic developments. With regard to the recent date of accession of the Czech Republic to the EU (May 1, 2004), the subsequent developments of Czech law in this area have been even faster and more dramatic than in the “old” Member States. The aim of this article is to give a brief overview of the current state of affairs in this area, and to suggest the possible ways forward.

2. Recognition and enforcement of foreign judgments

The Czech Republic, as a member of the European Union, is bound by the provisions of Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as the “Brussels Regulation”). Currently, the Brussels Regulation is directly applicable in all EU Member States except for Denmark.¹ As the name suggests, the Brussels Regulation only applies to civil and commercial matters and there are a number of cases interpreting the meaning of “civil and commercial matter”.² It is also necessary to emphasize that although the Brussels Regulation provides a fairly wide definition of “judgment,” the ECJ case law has excluded from this definition any remedy which was obtained by an ex parte court order.³

Article 33 (1) of the Brussels Regulation stipulates that a judgment given in a Member State shall be recognized in the other Member States without requiring any special procedure. The Czech Republic, therefore, recognizes civil or commercial judgments from other Member States. Although, if there is a dispute as to whether a particular judgment shall be recognized in the Czech Republic or not, special proceedings may be held before the Czech courts in order to resolve the dispute, or, as the case may be, it can be resolved as a preliminary question in different proceedings.

There are, however, certain circumstances, in which the Czech court will not be under a duty to recognize a judgment from another Member State court. Article 34 of the Brussels Regulation deals with these circumstances. Article 34 involves situations (i) where the foreign judgment is manifestly contrary to public policy in the Czech Republic; (ii) where it was given in default of the defendant’s appearance, when he was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defense, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so; (iii) where the foreign judgment is irreconcilable with a judgment given in a dispute between the same parties in the Czech Republic; or (iv) where the foreign judgment is irreconcilable with an earlier judgment given in another state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Czech Republic.

The Act No. 97/1963 Coll., on International Private Law and Procedure (hereinafter referred to as the “IPLP”) was recently amended⁴ in order to harmonize domestic law with the relevant provisions of EC law (most importantly the Brussels Regulation) and ratified and published international treaties, which are now directly applicable in the Czech Republic.⁵ The amendment added the new Part 4 into the IPLP, which regulates recognition and enforcement of foreign judgments in cases where the EC law or international treaties govern recognition and enforcement. Thus, the IPLP newly provides that a formal application for declaration of enforceability of a judgment in the Czech Republic (the so called exequatur) is required as a condition for enforcement. Some authors see this move towards greater formalism as a step back, since, prior to the amendment, foreign judgments were recognized informally by Czech courts, which is obviously more practical and convenient.⁶ However, the amendment further provides that the exequatur may be accompanied by an application for ordering enforcement of such judgment. This obviously makes the procedure easier for the injured party seeking a remedy, as the court will rule on both matters in one resolution. In this respect, it is also worth mentioning that certain execution titles from other Member States nevertheless remained automatically enforceable in the Czech Republic without any exequatur being necessary. The Regulation 805/2004 Creating a European Enforcement Order for Uncontested Claims creates a regime in which public documents and decisions of authorities in other Member states, which comply with the minimum procedural standards stipulated in the said regulation and where the debtor does not contest the existence or the amount of a monetary claim, can be certified as European Enforcement Orders. As such, they shall be enforced in other Member States as domestic enforcement orders. The regulation is applicable in all Member States with the exception of Denmark. As far as Czech civil procedure rules are concerned, conditions of Regulation 805/2004 are met in the case of payment orders, consent decrees, judgments by default, and judgments by acknowledgement.⁷ Other decisions will fall under the said Regulation only rarely, provided that they must comply with the abovementioned criteria.

As for other sources of law that deal with the questions of recognition and enforcement of foreign judgments in the Czech Republic, we have to mention another EU regulation, namely Regulation 1347/2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses. Currently there also exist rules of international law, which are directly applicable with respect to recognition and enforcement of foreign judgments in the Czech Republic. Here we should mention the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (published under No. 141/2001 Coll. of International Conventions). It is clear that the scope of both these sources of law is rather limited compared to the Brussels Regulation. Nevertheless, they also establish regimes of mandatory recognition of judgments obtained in other Member States (or, in the case of the Hague Convention, in other signatory states) in the respective fields, and Part 4 of the IPLP applies to them as well. Last but not least, it is necessary to keep in mind that the Czech Republic is also a signatory of various bilateral agreements on legal aid and on recognition and enforcement of judgments, the provisions of which must always be taken into account by the Czech courts.⁸

Where there is no applicable rule of international or EU law, recognition and enforcement of foreign judgments is governed by the Czech national conflict-of-laws rules, namely the IPLP. The first point to make here is that it is only possible to enforce judgments dealing with property and proprietary rights.⁹ For this purpose, these judgments include all cases where the obliged party is bound to a monetary or proprietary performance. For instance, monetary performances encompass also issues relating to the maintenance of minors. That being said, all other judgments can only be recognized in the Czech Republic, but cannot be enforced.

For the purposes of recognition and enforcement of foreign judgments, the most important provision of the IPLP is s. 64, which specifies the circumstances, under which a foreign judgment can neither be recognized nor enforced in the Czech Republic. This involves situations where (i) the recognition or enforcement is impeded by exclusive jurisdiction of Czech courts or where the proceedings could not have been conducted before any authority of foreign state if provisions concerning the competence of Czech courts had been applied to the consideration of jurisdiction of the foreign authority; or where (ii) in the same case as the case in question, a final and conclusive decision has been issued by Czech authorities or a final and conclusive decision of an authority of a third state has been recognized in the Czech Republic; or where (iii) the authority of the foreign state deprived the participant against whom the decision is to be recognized and/or enforced of the possibility to duly participate in the proceedings, particularly if this participant was not served the lawsuit or the writ of summons personally or if the defendant was not served the lawsuit personally; or where (iv) the recognition is contrary to Czech public order; or where (v) reciprocity is not guaranteed; reciprocity shall not be required if the foreign decision is not directed against a Czech citizen or a Czech legal entity.

It is useful to note that the situations under letters (ii) to (iv) are very similar to those in which the Czech courts may refuse to recognize or enforce a foreign judgment under the Brussels Regulation (see above). As to the provision under letter (i), its aim is to prevent the recognition of foreign judgments in cases where the foreign authority assumed jurisdiction in matters, in which, in the eyes of the Czech law, the foreign state lacks sufficient connection. The final requirement of reciprocity, letter (v), is perhaps the most important. The Czech courts must decide whether reciprocity exists between the Czech Republic and the respective foreign country, with respect to the question of both recognition and enforcement of judgments of the particular type in question. Reciprocity depends, of course, on the legal rules and practice of the foreign country. However, if a declaration of the existence of reciprocity between the Czech Republic and the foreign country was issued by the Czech Ministry of Justice, the declaration is binding for the Czech courts and other authorities and it cannot be reviewed.

3. Recognition and enforcement of foreign arbitral awards

Rules for recognition and enforcement of foreign arbitral awards are contained in the Act No. 216/1994 Coll., on Arbitration Proceedings and on Enforcement of Arbitral Awards, as amended (hereinafter referred to as the “Arbitration Act”). The Arbitration Act shall apply unless an international convention, treaty or bilateral agreement, which is binding for the Czech Republic, provides otherwise. A foreign arbitral award will generally be recognized and enforced in the Czech Republic, provided that there is a guarantee of reciprocity. Reciprocity is deemed to exist also if the foreign state in question generally treats foreign arbitral awards as enforceable on the condition of reciprocity. However, recognition and enforcement of a foreign arbitral award is refused in the Czech Republic if (i) the arbitral award is not final and conclusive or enforceable according to the law of the state where it was issued; or if (ii) the arbitral award contains one of the defects, making it possible to demand annulment of the arbitral award by a court; or if (iii) the arbitral award violates ordre public.

With regard for the applicable international law in the Czech Republic regarding recognition and enforcement of foreign arbitral awards, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter referred to as the “New York Convention”) must not be forgotten. For recognition and enforcement of foreign arbitral awards, the New York Convention does not require that the parties to the respective arbitration are members of signatory states. However, the Czech Republic used the reservation clause, according to which the New York Convention shall apply for arbitral awards given on the territory of another signatory state. As for arbitral awards given on the territories of non-signatory states, the New York Convention shall only apply to the extent, in which such states guarantee reciprocity for the Czech Republic. Under the New York Convention, an arbitration agreement is only recognized if it was executed in writing. In case of a valid arbitration agreement given in writing, courts of the signatory states are required to refer the parties to arbitration. The grounds for refusal to recognize and enforce a foreign arbitral award under the New York Convention are virtually identical to those contained in the Arbitration Act. However, most of them shall only apply on the basis of a request of the party seeking the refusal.

We should not forget, however, that the Czech Republic has also signed a number of bilateral international agreements on legal aid, which sometimes include rules on recognition and enforcement of arbitral awards.¹⁰ These are always applied in relevant cases.

4. Enforcement regimes in the Czech Republic

So far, we have predominantly dealt with the question of recognition of foreign judgments and arbitral awards, whereas now we will discuss the methods of their practical enforcement in the Czech Republic. Domestic legislation exclusively governs this area of law, since it regulates methods of state compulsion. Currently two enforcement regimes exist to enforce final and effective judgment or arbitral awards. These two regimes are (i) the so called Enforcement of a Decision (s. 251 to s. 351a of the Act No. 99/1963, the Civil Procedure Code, as amended (hereinafter referred to as the “Civil Procedure Code”)), and (ii) Execution (the Act No. 120/2001, on Court Executors and Execution Activity (hereinafter referred to as the “Execution Code”)). Let us now briefly compare and contrast the two regimes.¹¹

Enforcement is only initiated, by both these regimes, by an application to the appropriate court filed by the entitled party. However, in order to have any of these proceedings started, the entitled party must be awarded the so called execution title – a final and effective decision, or for our purposes either a court’s judgment or an arbitral award.

In the case of enforcement of a decision under the relevant provisions of the Civil Procedure Code, the applicant must file an application to the appropriate court, in which he shall select the method of performance of the decision. The options that the law gives to the entitled person include the recovery of the claim (i) by wage deductions, (ii) by assignment of a receivable, (iii) by sale of movable things or real property, (iv) by sale of an enterprise, or (v) by establishment of a judicial mortgage on real property. However, the court may select a different option than the ones chosen by the entitled party if the court considers that such option would be more appropriate. If the court finds no statutorily prescribed reasons for stay or termination of the enforcement proceedings and if the possible incidental disputes are resolved in favor of the entitled person, the court shall order enforcement of the decision in question. The enforcement order contains the exact method of enforcement chosen by the court and the court itself performs it, i.e. by the court’s employees.

In the case of execution under the Execution Code the applicant can either file an application to the appropriate court, or to an executor of his own choice, who shall then submit such application together with the execution title to the court along with a request for designation to perform the execution. Such application does not have to contain any particular method by which the execution shall be performed. Thus the method of performance is at the executor’s discretion, who himself shall determine the most appropriate method of execution. Executor’s options in this respect are also regulated by the Civil Procedure Code, although the Execution Code contains some minor differences. An executor is a natural person designated by the state to perform executor’s office. The Minister of Justice appoints Executors. The amount of their remuneration is largely dependent on the amount recovered; hence, they are motivated to act as efficiently as possible. Within the framework of execution proceedings, executor’s acts are deemed acts of the court. They also have many special rights compared to private individuals or legal entities, which should make it easier for them to perform their office effectively. If the executor finds no statutorily prescribed reasons for stay or termination of the execution and if the possible incidental disputes are resolved in favor of the entitled person, the executor shall issue an execution order, which has the same effects as an enforcement order issued by the court. The enforcement order contains the exact method of enforcement chosen by the executor and it shall also be performed by the executor himself.

5. Conclusion – proposals for reform

As far as the recognition and enforcement of foreign judgments are concerned, it is necessary to emphasize that the Czech law underwent dramatic developments in very recent past, most of them being connected with the accession to EU. Thus, the Brussels Regulation as well as the other relevant sources of EU law mentioned in this article became effective in the Czech Republic no sooner than on May 1, 2004. The history of Regulation 805/2004 is even younger as it only applies to enforcement orders issued after January 21, 2005. Any evaluation of practical impact of these reforms seems therefore premature. However, we must not forget that the new EU recognition and enforcement regime does only apply among EU Member States, with the exception of Denmark. The process of easier recognition and enforcement of foreign judgments given in other jurisdictions may be accelerated by the initiatives of the Hague Conference on Private International Law, which currently works on the proposal of the Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters.¹² Should these attempts be successful and should the convention be signed by states, like for instance the USA, the current problems with recognition and enforcement of foreign judgments faced in day-to-day practice could be largely resolved.

Another point to make is that even within the European Economic Area there still exist three various schemes applicable for recognition and enforcement of foreign judgments. Since in Denmark the Brussels Regulation does not apply, Denmark remains bound by the 1968 Brussels Convention. On the other hand, the EFTA member states still apply the Lugano Convention of 1988. It would definitely be useful to find a common ground for dealing with these issues.

From the domestic perspective, it is also possible to find areas, on which the Czech Republic concentrates, in order to achieve easier recognition and enforcement of foreign judgments. For instance, it might be very helpful to take a greater initiative in negotiating bilateral agreements on legal aid with individual foreign countries. The Ministry of Justice should also systematically investigate, whether individual foreign countries meet the conditions, which would enable it to issue a declaration of reciprocity with respect to particular types of judgments and arbitral awards. However, perhaps the most difficult task is to overcome the lack of international experience and excessive formalism of Czech courts with regard to recognition and enforcement of foreign judgments and arbitral awards, which is probably the heritage of forty years of communism in this country. Czech courts are, for example, still very hesitant to look at the laws of a foreign country in order to find reciprocity. Instead, they tend to slavishly rely on the respective declarations of the Ministry of Justice, and when there is no such declaration, they would refuse recognition. As far as the recognition and enforcement of foreign arbitral awards are concerned, it might perhaps be helpful to waive the aforementioned reservation clause, which limits the scope of application of the New York Convention.

Mgr. Otakar Hájek graduated from the Faculty of Law, Charles University in Prague in 2006. He is a member of the Editorial Board of the Common Law Review and the Supervisory Board of the Common Law Society and he currently works as a junior lawyer in Koneèná & Šafáø, v.o.s.

1
Note however that the regulation of jurisdiction and enforcement of judgments between the Member States and Denmark, it is governed by the Brussels Convention 1968. Although the Brussels Regulation has differences from the Brussels Convention, the broad scheme set out above is mirrored in the Convention. (see e.g. the article “The Brussels Regulation and the Brussels and Lugano Conventions“ at http://www.bakernet.com/BakerNet/Practice/Dispute+Resolution/Dispute+Resolution+Around+the+World/The+European+Perspective/1.+The+Brussels+Regulation+and+the+Brussels+and+Lugano+Conventions/default.htm, July 15, 2006)

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2
See e.g. LTU v Eurocontrol C-29/76 [1976] ECR 1541, Netherlands v Reinhold Rüffer C-814/79, [1980], Henkel [2002] C-167/00

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3
Denilauer v Couchet Freres [1980] C-125/79

4
Act No. 361/2004 Coll., which amends the Act No. 97/1963 Coll., on International Private Law and Procedure, as amended

5
Article 10 of the Constitutional Act No. 1/1993, the Constitution of the Czech Republic, as amended

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6 Bìlohlávek A.J.: Zavedení tzv. exequatur do èeského právního øádu, Právní zpravodaj 5/2004

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7 Kasíková, M.: EET – nová fáze komunitární úpravy exekucí, Právní zpravodaj 1/2006

8
A list of such agreements is contained in: Kuèera, Z.: Mezinárodní právo soukromé 5. opravené a doplnìné vydání, Doplnìk, Brno, 2001, p. 54-55

9 Kuèera, Z.: Mezinárodní právo soukromé 5. opravené a doplnìné vydání, Doplnìk, Brno, 2001, p. 385

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10 See footnote 8

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11
For detailed discussion of this topic see e.g. Winterová, A. et al.: Civilní právo procesní 2. aktualizované a pøepracované vydání, Linde, Prague, 2002, p. 493 et subs.

12
The text of the Convention can be found at http://www.legallanguage.com/Hague/haguetx16e.html, July 15, 2006